Defending monsters: accused criminals and the test of freedom
Criminal defense is defense of the Republic
J. Steven Bromwich, Criminal defense investigator and ethicist
Crime “news”
“Police state that after an extensive investigation, Jon Doe was arrested for shaking his newborn baby to death.
Chief Jones said they are confident in the results of the investigation. Doe’s girlfriend said he frequently gets angry but never thought he could murder her baby. ‘I am horrified,’ she said. ‘I hope he gets everything he deserves.’
John Doe’s mugshot is shown multiple times during the news report.
The news article continues with the opinion of the community. “‘If he killed a baby, he should die. Shake him to death,’ said a neighbor who wished to remain anonymous.”
“Mr. Doe’s attorney, Jane Smith, insists her client is innocent of this accusation: ‘Once the facts of the case emerge, Mr. Doe will be declared not guilty.’”
“The baby’s grandmother stated, ‘How can that woman defend a monster?’”
Exciting stories and polluted justice
Most crime shows appeal to passion. They distort how many people view law and order and crime and punishment. They rely on sensationalism and one-sided narratives to sell stories. It works.
Defense and innocence are boring, right? If storytellers focused on the necessary process of justice, including the presumption of innocence, viewership might suffer. Stopping monsters is cathartic and reassuring. Therefore, most stories about crime focus on fighting monsters, meting out punishment, and the plight of victims.
There are two big problems with storylines portraying the accused as guilty monsters staring down sure and harsh judgment.
First, people are sometimes not guilty of the crimes for which they have been accused. Other times they are overcharged. Prosecutors are in the habit of piling on the charges to convince an accused person to take a plea. The fear of losing a trial and facing much longer prison time often seems too risky, so most people accept a plea deal, even if they are not guilty (this will be the topic of a future article).
Second, the monster storyline undermines our free Republic. Our system was designed to both restrain the abuse of power and to protect the accused.
Power and corruption of justice
The United States was founded largely in response to abuses of power. The British Crown operated as a totalitarian monarchy, imposing laws and enforcement without the consent of the populace. Laws rigging the criminal justice system was a trigger for the Revolutionary War.
The most notable example of this rigging occurred in 1774. In response to the Boston Tea Party, British authorities passed the Coercive Acts, called the Intolerable Acts by the Colonies. Two of the four Acts speak to how criminal justice was corrupted by British authorities and weaponized against colonists.
First, the Massachusetts Government Act allowed sheriffs to choose jurors. This undermined impartiality of the judicial system. Jurors act as a kind of fourth branch of government, a topic I will address in a later piece.
Second, the Act for the Impartial Administration of Justice (a misnomer) allowed a governor (British Authority) to move a trial to another jurisdiction or to Great Britain. This Act obliterated the opportunity to receive a fair trial by a jury of one’s peers.
The founders and power
The founders of the United States largely distrusted power and were propelled into action by the Intolerable Acts. The First Continental Congress was convened that same year, in 1774.
The founders were not only concerned about ordinary crime, but about government power. The Crown was exercising arbitrary power over the people of the Colonies.
The U.S. Constitution reflects a distrust of concentrated power in the hands of government officials. The framers of the Constitution were familiar with the thought of classical writers, like Aristotle and Cicero, and modern works of political philosophy and ethics, like Locke and Hobbes.
Aristotle, the great classical ethicist and political philosopher, asked a critical question: Is power exercised according to law rather than passion? The exercise of reason should prevail over raw outrage.
The founders set up a Republic meant to restrain passion and increase reason in law and governance. Passion watches a crime related news program and screams, “Hang him.” Reason watches the same program and asks, “What are the facts of the case? Is it true?”
Do unto others
For reason to prevail over passion, each of us needs to ask some difficult questions. If you or a loved one were accused of a crime, how would you want the process to play out?
Would you want the state to name and shame you on their social media pages before you even had a chance to defend yourself?
Would you want the news media to report the police’s press release about your arrest and charges and be forever memorialized on the Internet?
Would you want your mugshot paraded around the Internet?
Would you want the obligatory condemnatory outrage on social media and elsewhere?
Would you want a prosecution that essentially threatens you with higher charges for considering a jury trial (being penalized for exercising your constitutional right)?
Would you want jurors who may have been influenced by one-sided news coverage and crime shows?
I imagine the answer to these questions is a resounding, “No” for you. But if a lopsided process is good enough for those other people what makes us think it would be different for us or our loved ones?
Countering the current narrative
Future articles will tackle the reality of what is happening, often the inner workings few people hear about. I will analyze them from the perspective ethics and the American founding principles. No “true crime” sensationalism. I am interested in truth and justice.
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For more on the Intolerable Acts, check out: https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/the-coercive-intolerable-acts-of-1774
About the Author
J. Steven Bromwich is a criminal defense investigator and ethicist, with advanced training in history and diplomatic studies. He writes about crime, culture, and human nature to help readers apply ethical principles and historical perspective to pressing modern problems.